Evidentiary hearings were held before this Court on April 13,
14, 27 and 28, and December 21, 1989. The matter has been fully
submitted as of March 23, 1990. The Court now sets forth below
its findings of fact and conclusions of law, and its decision
with respect to the motion for a new trial and the matters
directed to be adjudicated by the Court of Appeals.

This Court concludes that the moving defendants have failed
to prove that there were any improper ex parte contacts with
the jury or that the verdicts were tainted as claimed. Also, no
necessity is shown to require the oral testimony of the trial
judge. The motions are denied for the reasons set forth below.

Indictment SSS 86 Cr. 245, filed on April 7, 1988, charged a
total of eleven defendants in 35 counts. The Indictment charged
that, from April 1970 to April 1987, the defendants led,
managed, and participated in a racketeering enterprise known as
the Genovese Family of La Cosa Nostra (the "Genovese Family"),
a secret criminal organization, by committing and agreeing to
commit numerous crimes. The defendants include alleged leaders
of the Genovese Family, as well as several businessmen who
allegedly became their partners and assisted the Genovese
Family in infiltrating businesses in the New York City area and
nationwide.

Following more than thirteen months of trial, jury verdicts
of conviction were returned against the moving defendants on
May 4, 1988 for violations of the RICO statute, 18 U.S.C. § 1961
et seq., and various underlying offenses. The jury
convicted nine and acquitted two of the eleven defendants,
failing to agree on four predicate racketeering acts found in
the RICO allegations. The trial had a second phase involving
forfeitures during which the already exhausted jurors were
instructed as to the additional facts which needed to be found
to dispose of the forfeiture allegations in the Indictment. The
jury granted the government's application for forfeiture except
with regard to some of the interests of defendants Salerno,
Auletta, and Halloran. The initial deliberation to reach the
verdicts on the criminal counts extended over nine days. An
additional two days of deliberation were required for the
forfeiture phase of the jury trial.

After the verdicts were returned, defendants moved for a new
trial and for recusal of the trial judge in deciding the
motion, claiming that they had been denied a fair trial because
of ex parte communications between the Judge and jury and an
improper statement by a Deputy United States Marshal to the
jury. In support of their motion, the defendants submitted the
affidavits of three jurors, Joyce Domingo, Helen Talley, and
Joseph James. On October 12, 1988, the trial judge denied the
motion without a hearing, holding that "the evidence submitted
by the defendants in support of their motion lack[ed]
sufficient reliability, clarity, and strength to warrant
further inquiry." After imposition of pre-Guideline sentences
on October 13, and 14, 1988 ranging from six to seventy years,
the defendants appealed the trial judge's order.

In its decision of January 18, 1989, the Court of Appeals
vacated the trial judge's order denying a new trial and
remanded the case for further proceedings before another
district judge, including an evidentiary hearing "to determine
whether the allegations are true and to provide a basis for
assessing whether [defendants] were prejudiced by inappropriate
communications with the jury". 866 F.2d at 544. The Court of
Appeals stated that "[t]he substance of the inquiry on remand
should be limited to determining whether the Judge or Marshal
made ex parte statements to the jury, what each said, the
factual circumstances surrounding any ex parte contacts, and
whether the jurors who heard the statements communicated the
content of those statements to the other jurors" in order to
determine whether defendants are entitled to a new trial.
Id. The Court of Appeals noted that, on remand, the
investigator who submitted the cursory affidavit stating that
he took the statements of three jurors, the three jurors who
came forward with affidavits, and the Deputy Marshal, should be
called as witnesses. Whether the rest of the jurors, as well as
the trial judge, should testify was left to the discretion of
this Court.

Our Court of Appeals has stated that "complicity by counsel
in a planned, systematic, broad-scale, post-trial inquisition
of the jurors . . . is reprehensible." United States v. Brasco,
516 F.2d 816, 819 n. 4 (2d Cir. 1975) Although not forbidden by
statute, post-trial inquiries of jurors conducted in defiance
of specific court orders may constitute obstruction of justice.
Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir. 1948).
Nothing in the record of this case, however, suggests that
counsel for defendants, assuming they directed Mr. Glynn,
violated either of these principles. Glynn neither harassed
unwilling jurors nor violated instructions against approaching
them because no such instructions were ever given.*fn2 He
asked questions of cooperative jurors, declining even to
approach two jurors (the "upstate" jurors) from whom he
expected hostile or unsympathetic responses. At the close of
trial, the jurors were free to discuss the case to whatever
extent they saw fit. Mr. Glynn did nothing improper by asking
several of them whether they wished to do so.

Thus, even assuming that Glynn's investigation was
coordinated by some knowledgeable lawyer acting for one or more
of the defendants — an obvious conclusion on this record — no
wrongdoing or ethical breach was involved.

Glynn claims that the investigation was prompted by a
perceived suddenness of the jury's verdict. On May 2, 1988 the
jurors sent out an ambiguous note calling for a series of tapes
by subject matter. At least five hours were wasted while the
attorneys bickered with each other and argued with the trial
judge over which tapes were required to be re-played in
response to the note. Thereafter, some tapes were replayed, but
the jurors decided that they did not want to review additional
tapes. According to Glynn: "A short time thereafter, they came
out with a verdict and [Anthony DiNapoli] thought this was
— it just wasn't consistent." Glynn describes his retainer as
being "to interview some of the jurors to determine what their
feelings were along this — these lines." (Tr. p. 12). In fact,
the verdict was rendered on May 4, 1988, two days after the
jury decided it did not wish to re-hear the additional tapes.

A. For us to carry on and come to a decision.
Probably during lunch break. That's the only time
the door would have been open.

Q. Do you remember her exact words?

A. Come to a decision. Carry on.

The witness also testified (Tr. 304) that at a later time
the Judge said that she did not want a hung Jury: "She said to
pull the others together, so we can come to a decision and we
can't [sic] have twelve yes and twelve no. Just come to a
decision." This event is described as having happened on a
"night we worked very late, till 1:00, 2:00 o'clock in the
morning". Ms. Domingo was in the Judge's robing room to make
a telephone call "and she asked how everything was going, and
I told her not good" (Tr. 305). The telephone call was placed
while the Jury was engaged in deliberation on the issue of
forfeiture, and I find that it is the same contact described
in Judge Lowe's affidavit as the "we want pillows and
blankets" situation, discussed below.

Movants then confronted Ms. Domingo with her own affidavit
obtained by Mr. Glynn. The following testimony ensued:

(By Mr. Jacobs: Tr. 305)

Q. Ms. Domingo, let me take you back to the first
time that you said the judge was at the jury room
door. Do you remember anything else that the
judge said at that time?

A. No, just to carry on and come to a decision.

Q. Let me show you court Exhibit No. 1, Ms.
Domingo, and ask you whether you have seen that
document.

A. Yes, I have.

Q. And what is it, ma'am?

A. Well, it's a deposition of what I remember.

Q. Would you look at it — would you take a moment
and read it, please?

A. Starting with the date?

Q. No, read it to yourself.

(Pause)

Q. Have you read the document?

A. Yes, I have.

Q. Is that your signature that appears on page 2
of the document?

A. Yes, it is.

Q. After reading [that] document, do you recall
anything else the judge said when she was at the
doorway to the jury room, if anything?

A. Just what's in here, in the paragraph.

Q. Not what's in the paragraph. What do you
recall as you sit here now that she said, the
exact words?

A. That we had to come to some decision, she
didn't want a hung jury.

Q. And after that statement was made by the
judge, was that statement either acknowledged by
any of the other jurors, to your knowledge,
ma'am?

A. No. I don't think they thought anything of it.

Q. I am sorry?

A. No, I didn't think so.

Q. Was it discussed among the jury, that
statement by the judge?

A. Oh, yes, it was.

(Emphasis added)

Ms. Domingo also testified on direct examination (Tr. 309)
that "a United States Marshal" said "the people outside are
getting tired and restless, and if we don't hurry up and make
some type of decision, we are going to have to listen to over
100 audio tapes". She said she had this conversation with the
[deputy] United States Marshal between the door and the
hallway and
thereafter communicated the substance of that conversation to
the rest of the Jurors.

According to Ms. Domingo, when she was first contacted by
Mr. Glynn at home she arranged to meet with him without any
hesitation (Tr. 321, 324). She was not surprised by the call
and had no suspicions or curiosity about Mr. Glynn; she never
asked him any questions about whom he represented or why he
might be calling her. He said that he wanted her opinion about
the case, and as noted earlier, she responded that "[s]he
would try to help because [the defendants] got a rotten deal,
whatever I could do or say or whatever" (Tr. 403).

Ms. Domingo further testified that "throughout the
deliberations" other jurors acknowledged that they had heard
Judge Lowe's statement (Tr. 307). She insisted that "every
juror heard the statement. I feel they all heard it. Now what
they say is a different story. I know they all heard it" (Tr.
369). This statement is flatly contradicted by testimony of
the other two affiant jurors and by Glynn's taped interviews
with four other jurors who did not testify. Ms. Domingo could
offer no explanation as to why none of the other jurors
recalled the event (Tr. 369).

Concerning the alleged Marshal incident, Ms. Domingo
presented the only evidence at the hearing that supports
movants' position. Ms. Domingo testified that near the end of
first phase deliberations, right after the jury had sent out
a note asking for tapes, she met the Marshal alone in the
hallway outside the jury room. This is inconsistent with
Joseph James' testimony below that the Marshal came into the
jury room and spoke so that all the jurors could hear. Ms.
Domingo further testified that she "conveyed [the Marshal's
statement] to the rest of the jury[,]" saying "I have an
announcement to make, and they all heard" (Tr. 373-77). Again,
none of the other jurors recalled such a remark by Ms.
Domingo.

The contact with the Marshal allegedly occurred when the
jurors had to go back into the jury room to pinpoint
particular tapes that they still wanted to replay and had
requested earlier in the day (Tr. 373). The jury had listened
to approximately 4 tapes out of 25 in response to note 31 (as
modified by note 34) and then had requested to return to the
jury room (Trial Tr. 24,407). They later sent out note 35
saying that they did not wish to listen to the remaining
tapes. Accordingly, the Marshal was authorized on the record
by the trial judge to ask the jurors if they still wanted a
different request (note 32) fulfilled concerning tape 429.
Marshal John J. Perrine, on the trial record, stated that he
spoke to "the forelady, and she replied that they did not want
to hear that tape, that they are
deliberating and did not need it" (Trial Tr. 24,408).

Ms. Domingo claimed that she did not know that the Judge had
sent the Marshal in to the jury room, with the approval and
authorization of all attorneys, to ask them questions about
the tapes in an effort to discern to which notes the jury then
wanted the Court to respond (Tr. 382). When Ms. Domingo was
reminded that the jury had complete control over which
evidence it wanted to listen to, had a list of tapes by
subject matter in the jury room during the course of
deliberations, and had asked for specific tapes to be replayed
and requested others by exhibit number and subject area until
they got what they wanted, she conceded: "[I]t was the jury
who made that decision not anybody else" (Tr. 379-80).
Apparently, at the very least she is confused as to the time,
place, source and content of the communication with the
Marshal, which was authorized by the Court and not
clandestine.

Concerning the third alleged ex parte contact, Ms. Domingo
testified that during forfeiture deliberations, on the night
they worked until 1 or 2 A.M., Judge Lowe said "she didn't
want a hung jury. She said to pull the others together . . .
[j]ust come to a decision" (Tr. 304). Ms. Domingo stated that
the conversation took place in the Judge's chambers when she
went to make a telephone call and that after she had this
conversation with Judge Lowe, she went back to the jury room
and communicated the conversation to other members of the jury
(Tr. 309, 388). Ms. Domingo further testified that, earlier
that evening, the jury had sent out a note asking whether they
could have a hung jury on two specific charges. The jurors
were then brought into the courtroom and given a modified
Allen charge. (Trial Tr. 25005, 25008-25011). This charge
instructed the jurors that they must "under no circumstances"
yield their own "conscientious judgment" in order to reach a
verdict and, at least by necessary implication, that they could
deadlock. Such formal instruction in open court likely would
receive greater deference from jurors than some casual informal
contact with one juror.

Glynn: You see a couple of the Jurors told us
that like a, she came about three times. Oh,
this one Juror was really, oh, you know,
recalled. The other Juror said that she
happened, you know, look in the door, how was
everything going, and she . . .

Reynolds: Yeah.

Talley: Like I said, maybe once or twice, but you
know. It wasn't, ah, for the most time she was
in that room over there.

Reynolds: Yeah.

Again, later in the interview at Page 37 of the transcript,
Talley describes Judge Lowe:

Talley: The only time I would really see her was
when she comes in the morning. You know.

Glynn: Umhum.

Talley: And, ah, after we all get in, then we
would sit down and close the door. And then,
ah, whatever, ah, agent is outside, he, ah, he
gives us our books and pencils, or whatever
situation. Or, if we needed anything they would
be willing to pick it up, or something like
that, you know, but normally she [the Judge]
she, ah, usually would be in before we really
sit down and really start . . .

Glynn: Yeah.

Talley: Trying to iron out our differences. And
she would say "Good Morning" or speak to us, or
you know how that, you know, and then she goes
on to that other side over there.

Glynn: When she told Joyce [Domingo] ah, about
trying to get everybody together.

Talley: Umhum.

Glynn: Did Joyce come back in and tell you people
that. Did she tell the whole Jury, or what? Do
you remember that.

Talley: I don't know. And, ah, I can't remember.
(UI) I don't know.

Treating the transcript of Mrs. Talley's initial interview
as being the best evidence of her true knowledge and
recollection nearest the events in point of time, it does not
support movants nor does it corroborate Ms. Domingo's claims.
Although Mrs. Talley is very partial to the defendant/movants,
the totality of her testimony is of little assistance to them.
According to Mr. Glynn, Mrs. Talley recalled the trial judge
"coming to the deliberation room door once and maybe twice" at
which time the Judge warned that she "did not want a hung jury
. . . it had to be guilty or not guilty" (Tr. 65-66). Glynn's
testimony to this effect is contradicted by his own tape and
by Mrs. Reynolds. Moreover, Mr. Glynn testified that Mrs.
Talley had told him that when Ms. Domingo went to make a phone
call in chambers, she came back and told the others that the
Judge had said that they must reach some decision.

At the hearing, on direct examination, Mrs. Talley testified
that Judge Lowe came to the door at lunchtime and asked how
everything was going (Tr. 407). When informed that the jurors
were struggling, Mrs. Talley testified that Judge Lowe told
them "to try a little harder . . . because we have been at it
too long and we don't want a hung jury" (Tr. 407). Mrs. Talley
then added that the jurors had discussed the Judge's
instruction (Tr. 408).

When asked if Mr. Glynn prepared the affidavit (Ex. 4) for
her, Mrs. Talley said no.*fn6 She further explained that Mr.
Glynn never asked her if she would sign an affidavit, but that
Ms. Domingo called her after the meeting with Glynn on August
1st and "said she was bringing over some papers for me to sign
pertaining to what I had said, talked to — with Mr. Glynn"
(Tr. 421). Ms. Domingo in fact proceeded to do more favors for
Mr. Glynn and defendants by obtaining the statement prepared
for Mrs. Talley from Mr. Glynn, delivering it to Talley,
driving her to a notary, and then returning the notarized
document to Glynn (Tr. 355-56).

The affidavit of Mrs. Talley is inconsistent with her
testimony and her taped interview. Her execution of the
affidavit was procured by Ms. Domingo, under circumstances
highly suggestive of fraud and collusion. To the extent they
differ from her taped interview, her affidavit and testimony
are incredible and entitled to no weight.

Joseph James

The third and last affiant juror Mr. Glynn successfully
contacted was Mr. Joseph James, who met with Mr. Glynn and
Mrs. Reynolds at least four times and then prepared a
hand-written affidavit supposedly on his own initiative in
which he described contacts by the Judge and the Marshal.
Again, there is conflicting testimony concerning the
preparation of the affidavit. Mrs. Reynolds testified that Mr.
James had a completed two-page handwritten document with him
when he met with them in Mr. Glynn's car on July 29, 1988,
which he gave to Glynn for his review. This conflicts with Mr.
Glynn's testimony that Mr. James prepared the affidavit in
their presence in the car.*fn7

Mr. James, Ms. Domingo and Mr. Glynn all testified that no
one made any suggestions as to what the statement should
contain. However, Ms. Domingo did say that she had "one or two
conversations" with Joseph James in June or July after she had
met with Mr. Glynn several times (Tr. 345), and Mr. James knew
before he made his statement that Ms. Domingo had made a
similar statement.*fn8

Q. The statement that you put in your affidavit
that there was an understanding that you couldn't
have a hung jury, where did that come from, sir?

A. I believe it came from Miss Domingo.

(Tr. 612).

Mr. James further testified that the idea that they would
have to listen to over 100 tapes came from Joyce Domingo (Tr.
552, 578) and that there was no interference from the Marshals
or anyone else during the course of deliberations (Tr. 590).

Mr. James testimony at the hearing does not support the
position of the movants. James, who had completed three years
of college, was employed as a motorman in the New York City
subway system. He was generally hostile to the court and the
criminal justice process, highly favorable to the defendants
in his attitude and state of mind, as well as friendly to Ms.
Domingo. However, his testimony, read in its totality, does
not support the claims here, even without any consideration of
possible bias on his part against the Government and without
considering any issues as to his credibility.

Other Jurors

Mr. Glynn also attempted, with the help of Mrs. Reynolds, to
contact some of the other jurors. No effort was made to
contact the two so-called "up-state jurors" because "they
wouldn't help [the] cause anyway" (Court Exh. 13). Three
jurors, Jenkins, Shine and Wigfall, refused to be interviewed.
Four in addition to the three affiant jurors, submitted to
interviews which were secretly tape recorded. Jurors Ethel
Stallworth, William Herbert, Clementine Jones, and Joseph
Hladki all stated in their tape-recorded conversations with
Mr. Glynn, discussed infra, that the only time that Judge Lowe
said "come in with a verdict of guilty or not guilty" was in
speaking from the bench in the courtroom.

The fundamental contradictions in Joyce Domingo's own
testimony, inconsistencies between her testimony and her
affidavit, and the contradictions between her rendition of the
facts and those of the other jurors interviewed, all make
clear to the Court that she cannot be considered a credible
witness. Although at the hearing, after prodding, Ms. Domingo
affirmed the substance of her original affidavit, her obvious
predisposition towards the movants and pervasive second
thoughts about her verdicts cast serious doubt upon the
truthfulness of that part of her testimony. Whatever her
motives, her testimony must be discounted for want of
credibility and because it is confused, uncorroborated, rife
with internal inconsistencies, and contradicted by so much
other evidence in the case.

Response from the Trial Judge

Following the Court of Appeals' suggestion that "[p]erhaps
Judge Lowe's account of the facts may be adequately set forth
in an affidavit," Ianniello, 866 F.2d at 544, this Court wrote
a letter to Judge Lowe on August 14, 1989 with copies to all
counsel. That letter advised in relevant part:

"In order that I may have a jurisprudential basis
upon which to exercise this "broad discretion"
referred to in the Court of Appeals opinion, I
respectfully request that you read and consider
the testimony heretofore taken in this matter.

If your testimony would be merely cumulative, no
purpose would be served by submitting anything.
If you have material evidence which bears on the
issue, I would appreciate learning this from you,
together also with such suggestion as you may
have as to whether you wish to proceed by
affidavit, and if so, when this can be
accomplished.

See Affidavit of the Honorable Mary Johnson Lowe at 4-5
(emphasis added).

Judge Lowe's affidavit also mentions a time during
deliberations when, with the consent of counsel, Judge Lowe
had dealt with the problem of a juror who required medical
attention.*fn9 She states that in passing by the jury room
when the door was open, she said to the juror "Are you feeling
better?" and the juror responded in the affirmative and
thanked the Judge. Assuming that by understanding of counsel
these dealings with jurors' personal problems were not
required to be spread on the trial record, that fact was not
necessarily known to Joyce Domingo. If the claimed ex parte
contacts by the Judge stood out so in her memory, one would
have expected that she would also have informed Mr. Glynn and
this Court of the incident of the Judge speaking with ill
juror number six or seven, as the case may be. Domingo never
mentioned it.

Judge Lowe's affidavit does recall a note from the jury
asking for pillows and blankets, reiterated in person by Joyce
Domingo when using the Judge's telephone. She states that she
did tell Domingo that "there will be no pillows and blankets
— either the jury deliberates or they will be sent home".
Interestingly enough, no mention of the pillows and blankets
has been brought forward by any of the affiant jurors.*fn10

In letters and briefs to this Court, movants argue that
Judge Lowe should be required to give oral testimony and
submit to cross-examination. Although our Court of Appeals has
acknowledged that "asking a district judge to testify is a
serious matter", Ianniello, 866 F.2d at 544; movants insist
that Judge Lowe is an essential witness who must be required to
give oral testimony. While recognizing that judges are not
immune from subpoenas for truly essential oral testimony, the
Court declines, for the reasons set forth below, to require her
testimony in this case.

Movants have failed to present credible evidence sufficient
to rebut the presumption of regularity to which judicial
proceedings are entitled. As the Supreme Court explained some
fifty years ago, "[judges] are assumed to be men of conscience
and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances."
United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004,
85 L.Ed. 1429 (1940).*fn11 Oral examination of a judicial or
quasi-judicial officer as to matters within the scope of his
adjudicative duties should be permitted only upon a strong
showing of bad faith or improper behavior. See e.g. Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971); KFC National Manufacturing Corp. v. NLRB,
497 F.2d 298 (2d Cir. 1974). "Should a judge be vulnerable to
subpoena as to the basis of every action taken by him, the
judiciary would be open to 'frivolous attacks upon its dignity
and integrity, and . . . interruption of its ordinary and
proper functioning.'" United States v. Dowdy Co., 440 F. Supp. 894,
896 (W.D.Va. 1977), quoting United States v. Valenti,
120 F. Supp. 80, (D.N.J. 1954).

The totality of the evidence even without considering Judge
Lowe's affidavit does not convince this Court that movants
have sustained a claim to a new trial. Defendants have
produced no credible evidence of ex parte contact, and such
evidence as they may have fails to establish conduct of which
the remaining jurors were aware. Thus insofar as concerns both
the alleged statements and "whether the juror[s] who heard the
[alleged] statements communicated the content of those
statements to the other jurors," Ianniello, 866 F.2d at 544,
this Court finds the movants have a failure of proof. The Court
concludes that the oral testimony of Judge Lowe should not be
required simply because it would be cumulative and unnecessary.

Defendants seem not to contend that Judge Lowe's oral
testimony would contradict her affidavit. Rather, defendants
seem to argue that they are entitled to conduct
cross-examination simply for its own sake and to show, if
possible, that her recollection is faulty. Judge Lowe's
affidavit is plain, and there is no practical reason to
believe that calling her as a witness would increase her
recollection of this lengthy and undoubtedly burdensome trial
concluded almost two years ago. Moreover, calling the Judge as
a witness solely to assess her credibility would be pointless
because the burden of proof of an element of a claim or
defense cannot be satisfied by calling a witness who testifies
to the contrary of the fact sought to be proved, and then
arguing that by demeanor the witness is implausible or
incredible. Cf. Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952)
(L. Hand, J.)

Article III judges enjoy no absolute express constitutional
immunity from giving testimony. There must be, however, an
implied Constitutional protection to prevent collateral attack
on a judgment from interfering with, burdening, or otherwise
harassing the trial judge with witness subpoenas. An Article
III judge has the implied freedom to do the work of the office
without threat of interference. In United States v. Nixon,
418 U.S. 683, 705 n. 16, 94 S.Ct. 3090, 3106 n. 16, 41 L.Ed.2d 1039
(1974), the Supreme Court held:

As a mirror principle to the rule enunciated in United States
v. Nixon, supra, can the law be different with respect to a
federal judge?

Apart from an implied limited protection for Article III
officials tantamount to the privilege implied under Article
II, a strong prudential interest exists in favor of protecting
the court and its judges from harassment and interference with
the performance of their duties. As Judge Learned Hand has
commented in another context, to hold otherwise "would dampen
the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties."
Gregoire v. Biddle 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand,
J.). The mandate of the Court of Appeals in this case must be
read against the background of such cases as Nixon and Gregoire
in exercising discretion as to whether Judge Lowe should be
called as a witness.

The first point to be considered, however, is one of
necessity. If there is no necessity to call the trial judge as
a witness, a discretionary call weighing the implied
Constitutional privilege to be free of subpoenas arising out
of judicial duties against the degree of the necessity for the
testimony is not required. Here there is no necessity.
Accordingly, this Court has concluded not to call Judge Lowe
to testify or to be cross-examined.

Claim of Non-Compliance with Rule 615 F.R.Evid.

As to Judge Lowe's affidavit, movants (see e.g. Supplemental
Memorandum of Nicholas Auletta at 8) object to a claimed
non-compliance by this Court with Rule 615 F.R.Evid. in that
this Court's written invitation to Judge Lowe to review the
transcript of the new trial hearing (a public record, generated
in open Court and on file in the public files of the Clerk's
office) and then, if so advised, to submit her affidavit or
advise this Court if she wished to testify, is a violation of
Rule 615 of the F.R. Evid. concerning the exclusion of
witnesses. The Rule reads as follows:

Rule 615. Exclusion of Witnesses

At the request of a party the court shall order
witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the
order of its own motion. This rule does not
authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of
a party which is not a natural person designated
as its representative by its attorney, or (3) a
person whose presence is shown by a party to be
essential to the presentation of the party's
cause.

We begin our discussion by observing that the Rule, by its
express terms, applies only to exclusion of the witnesses from
the Courtroom "so that they cannot hear the testimony of other
witnesses". The Rule has exceptions for parties, officers or
employees of a party not a natural person, or for a person
whose presence is shown to be essential to the presentation of
the party's cause (e.g. an expert witness who has to hear the
fact witnesses in order to form an opinion, or a case agent for
the government in a criminal prosecution).

In camera proceedings are extraordinary events in
the constitutional framework because they deprive
the parties against whom they are directed of the
root requirements of due process. . . . Whenever
the legal rights of individuals are to be
adjudicated, the presumption is against the use of
secret proceedings.

Throughout the hearing itself, this Court stated that the
Federal Rules of Evidence should apply "to the extent they are
interpreted in this District and to the extent they are
modified by the Judge Goddard Rule" (Tr. 627-629).*fn12

The Government believes the tapes were admitted into
evidence on consent (Tr. 202-204). When Mr. Glynn was
examined, he agreed that the microcassettes contained his
conversations with the jurors, and he explained his procedure
for recording the jurors (Tr. 36-39). When the Government
offered those exhibits into evidence on cross-examination,
defense counsel did not object and the exhibits were received
(Tr. 202-204). Defense counsel counters that although there
was no contemporaneous objection to the admission of tapes,
the proffer was made after the Court stated: "I'm not having
any tapes played unless they are for the limited purpose of
impeachment . . ." (Tr. 97, emphasis added). Therefore, the
defendants believed that the tapes were admitted only for
impeachment purposes, not as substantive proof. The Court left
the issue open when it stated: "I assume that the tapes are for
the purpose of . . . obviously for credibility and prior
statements as they would be in any situation. I don't know if
they are being offered for the truth" (Tr. 628).

One of the paramount concerns in a criminal trial is the
cross-examination of witnesses. See Sullivan v. Fogg,
613 F.2d 465 (2d Cir. 1980); see United States v. Shakur, 817 F.2d 189,
200 (2d Cir. 1987), quoting Chambers v. Mississippi,
410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) ("absence
of cross examination 'calls into question the ultimate
integrity of the fact finding process'"). When our judicial
system was established and the requirement of an oath or
affirmation on the part of a witness was borrowed from the
British common law, the swearing of an oath meant something —
namely, that the court could be fairly sure that a witness
would tell the truth. In the time of our Founding Fathers,
witnesses believed that they would be subject to severe and
perhaps immediate Divine retribution if they lied under oath on
the witness stand, based on the Ninth Commandment's
proscription, handed down by God to Moses that "Thou shalt not
bear false witness against thy neighbor" (Exodus, Ch. 20, Verse
16 (King James Version)).

Unfortunately, the sanctity of the oath taken by witnesses
at trial has been significantly eroded and laced with
skepticism in recent years. Yet it is still believed that the
courtroom engenders an atmosphere conducive to truth-telling,
for it is likely that upon being brought before such a body of
neighbors and fellow citizens, and having been placed under a
solemn oath to tell the truth under the temporal penalties of
perjury, many witnesses feel obliged to do just that.

The right to Sixth Amendment cross-examination now extends
beyond the constitutional requirements of the Confrontation
Clause. However, the Supreme Court has also made clear that
while the hearsay rule and the Confrontation Clause "stem from
the same roots," Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct.
210, 218, 27 L.Ed.2d 213 (1970), and "are generally designed to
protect similar values," California v. Green, 399 U.S. 149,
155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), their reach is
not co-extensive. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct.
2308, 33 L.Ed.2d 293 (1972). The Sixth Amendment guaranty of
confrontation, therefore, should not blind us to the reality
that the question of the admission of hearsay statements at
this point in history, whether in a criminal or civil case,
turns solely on due process considerations of fairness,
reliability and trustworthiness.

The tape-recorded interviews meet all the criteria set forth
in the residual exception. The factors supporting
admissibility include the fact that the interviews took place
shortly after the trial ended, thereby assuring that the
events of the trial and deliberations were still fresh in the
jurors' minds. Mr. Glynn interviewed the jurors at great
length. His years of police experience served him well, as he
repeatedly probed the jurors by leading and suggestive
questions and argumentative assertions of "fact" said,
falsely, to have been corroborated by others previously
interviewed.

The interrogation of the jurors possessed every
characteristic of a thorough and exhaustive cross-examination
as to whether any outside influence affected their
deliberations. In each case, the non-affiant jurors, who had
no reason to lie or distort the facts, either did not recall
the incidents or expressly denied that they ever occurred.
They did so repeatedly, despite wheedling and suggestive
exhortation by Mr. Glynn. Indeed, Mr. Glynn admitted on
cross-examination that each of the non-affiant jurors had, in
fact, denied any knowledge of the alleged incidents (Tr. 105).
Although the movants may not like the answers, there is no
reason to doubt the trustworthiness of the statements.
Therefore, the conversations on the tapes have sufficient
indicia of reliability to be admitted under Rule 803(24).

This Court believes it would be highly unfair and a waste of
judicial resources now to require these jurors to testify as
a condition to the admissibility of these secretly-recorded
interviews conducted by a hired investigator whose sole
purpose was to elicit facts favorable to those who hired him
and now object to the admissibility of his work. The
reliability of the tapes and the thorough manner in which the
jurors were interrogated leads us to conclude that no further
questioning is necessary or productive. If any of these
non-affiant jurors now testified inconsistently with the
tapes, they would not be credible, and any such testimony
would be impeached by the tapes. The circumstances concerning
the statements on the tapes "provide a guarantee of
trustworthiness equivalent to the exceptions to the hearsay
rule." United States v. Iaconetti, supra, at 574; see United
States v. Ianniello, supra, at 544 ("the rest of the jurors
should be examined only if the district court conducting the
hearing determines, in its discretion, that such testimony is
needed.")

Indeed, the taped interviews by Glynn of the non-affiant
jurors are the most highly probative evidence in our entire
record bearing on the main issue: Was the verdict tainted by
improper ex parte contact with the jurors? Had the original
motion papers considered by the Court of Appeals disclosed the
existence of these four tapes and their content, it is highly
likely that these hearings would have been considered
unnecessary.

Defendants' Motion to Call Remaining Jurors as Witnesses

Defendants request that all remaining jurors be called to
testify, and that they be placed under oath and subject to
cross-examination.

The right of a criminal defendant to be tried by a jury is
one of the most significant guaranties of our Constitution.
Such a defendant has a right to a trial by an impartial jury,
unprejudiced by extraneous influence, and when reasonable
grounds exist to believe that the jury may have been exposed
to such an influence, the inquiry must be broad enough to
permit "the entire picture" to be explored. Remmer v. United
States, 350 U.S. 377, 379, 76 S.Ct. 425, 426, 100 L.Ed. 435
(1955) ("Remmer II").

The defendants argue that this Court can only explore "the
entire picture" by calling the remaining nine jurors to
testify. However, the interest in allowing the defendants to
explore all relevant surrounding circumstances concerning
possible ex parte communications to the jury must be balanced
against the conflicting but equally important interest in
preserving the sanctity of jury verdicts and protecting jurors
from harassment and intimidation. A post-trial hearing is not
held to afford a convicted defendant the opportunity to
"conduct a fishing expedition." United States v. Moten,
582 F.2d 654, 667 (2d Cir. 1978) ("Moten I").

Seven of the jurors in this case have already been located,
interviewed, manipulated and probed in a concerted effort to
extract statements from them that could be used to impeach the
verdicts. Without some showing of genuine necessity, the
jurors who did not choose to enter the fray by making
affidavits should not be called into court now merely to be
harassed and intimidated, subjected to direct examination,
cross-examination, redirect examination, and
recross-examination, and to face the same persons whom they
previously convicted of serious crimes.

The defendants' contention that "entire juries are routinely
questioned," Defendants' Brief at 18, is an overstatement. In
Moten I, the Court of Appeals remanded the case to the District
Court and directed that the jurors be questioned regarding the
facts surrounding a corrupt approach made to one or more of the
jurors during the course of the trial. On remand, the District
Court interviewed two jurors and determined that no further
inquiry was necessary. The Court of Appeals affirmed in words
prescient of this case, noting that "the factual underpinnings
of this Court's prior concern collapsed under the weight of the
evidence received at the remand hearing." United States v.
Moten, 620 F.2d 13, 16 (2d Cir. 1980) ("Moten II").

Similarly, the Court of Appeals in United States v. Calbas,
821 F.2d 887 (2d Cir. 1987), cert. denied, 485 U.S. 937, 108
S.Ct. 1114, 99 L.Ed.2d 275 (1988), found "no substance in
Calbas's suggestion that the District Court acted improperly in
conducting a limited inquiry," asserting that it had previously
stated that "the trial court has wide discretion in deciding
how to pursue an inquiry into the effects of extra-record
information," Id. at 896; see United States v. Hillard,
701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103
S.Ct. 2431, 77 L.Ed.2d 1318 (1983), and "indeed has the power
and the duty to supervise and closely control such inquiries."
United States v. Calbas, 821 F.2d at 896; Moten I, 582 F.2d at
665.

The Court of Appeals opinion in this case expressly states
that the scope of this hearing "should be limited to only what
is absolutely necessary to determine the facts with
precision." United States v. Ianniello, 866 F.2d at 544; see
Moten I, 582 F.2d at 667. The opinion further stated that the
other jurors should be called only if their testimony would be
probative on the issue of "whether the jurors who heard the
statements communicated the contents of those statements to the
other jurors." United States v. Ianniello, 866 F.2d at 544.

That some of the four jurors who were interviewed and taped
might change their story on the stand is a speculative
argument insufficient to justify further inquiry. Such a
change, should it occur, would be highly suspect and entitled
to no weight. Further examination of the taped jurors would at
most be merely harassing and cumulative in the context of the
present record. Mr. Glynn intentionally avoided contacting the
two "upstate" jurors because he believed that their responses
"would not help the cause." There is no reason to believe he
was incorrect in this assessment. No sufficient reason exists
to disturb the privacy of the three jurors who refused to be
interviewed. Relying on overwhelming precedent and strong
policy arguments, we conclude that under the facts of this
case, there is no need or justification to call the remaining
jurors.

On the totality of the evidence this Court concludes that
there is no credible evidence that either Judge Lowe or Deputy
Marshal Perrine interfered with the deliberations of the
jurors or attempted in any way to influence or coerce the
trial jury. Based on the proof adduced before me, neither this
jury nor a "hypothetical average jury" would have been
influenced, coerced, or led astray.

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